Appeal of Cox

• Decision Date: 10 June 1927
• Citation: 137 A. 771
• Parties: Appeal of COX.
• Court: Maine Supreme Court

137 A. 771

Appeal of COX.

Supreme Judicial Court of Maine.

June 10, 1927.

Exceptions from Supreme Judicial Court, Kennebec County, at Law.

A decree of the judge of probate admitted to probate the will of W. B. Waterman. From the decision on appeal from said decree, Barbara Remick Cox brings exceptions. Exceptions overruled.

Argued before WILSON, C. J., and DEASY, STURGIS, BARNES, and BASSETT, JJ.

Merrill & Merrill, of Skowhegan, for appellant.

John E. Nelson and Ralph W. Farris, both of Augusta, for appellee.

DEASY, J. By the will of the late W. B. Waterman the sum of $15,000 was left in trust for the Abnaki Club of Augusta. Of the three witnesses to the will, one, Ralph W. Farris, was a resident member of the Abnaki Club.

The only alleged ground of objection to the probate of the will is that said Ralph W. Farris by reason of his membership in the club was at the time of attestation beneficially interested under the will and not a credible witness.

The clause of the will by reason of which Mr. Farris is alleged to be disqualified as a witness reads thus:

"I give and bequeath the sum of fifteen thousand dollars to Hiram L. Pishon of Augusta, Maine, as trustee for the Abnaki Club, a voluntary association located at said Augusta, in the county of Kennebec and state of Maine, upon trust, that the said trustee shall pay over the income of said sum to the treasurer of the said Abnaki Club annually at the end of each calendar year, the said income to be used by the club as its officers and directors may in their discretion deem advisable; provided that the said Abnaki Club retains its present location on the second floor of the Masonic Temple in said Augusta, and in the event that the said club moves from its present location, disbands or dissolves then this bequest becomes void as to said Abnaki Club, and I give and bequeath the said sum to my residuary devisees and legatees hereinafter named."

The Abnaki Club is an unincorporated association. Its objects, as appears by section 1 of its by-laws, are "the maintenance of suitable rooms for the use of its members in common; the promotion among them of friendly intercourse and such other social purposes as the club may ordain."

The club's expenses are paid by dues which are fixed by the by-laws at $10 annually for resident and $5 annually for nonresident members. Membership may be forfeited for nonpayment of dues or for misconduct.

Wills are in this state required to be subscribed by "three credible attesting witnesses, not beneficially interested under said will." R. S. c. 79, § 1. That the term "credible" is to be construed as meaning "competent" has been decided by so many courts and cases that it is unnecessary to cite any. It is not contended that Mr. Farris is an incompetent witness for any reason other than his interest as a member of the club. The question is therefore whether Ralph W. Farris by reason of his membership in the Abnaki Club was at the time the will was made beneficially interested under it.

We do not find that this precise situation, a bequest to an unincorporated social club witnessed by a member, has ever been passed upon by any court.

In numerous cases questions somewhat analogous have been considered and decided. We summarize here the pertinent Maine cases and some of the principal authorities in other jurisdictions, first listing those cases wherein witnesses have been held competent:

Witness Held Not Beneficially Interested.

Bequest to a town witnessed by a taxpayer of same town. Piper v. Moulton, 72 Me. 155; Marston et al., Pet'rs, 79 Me. 25, 8 A. 87; Hitchcock v. Shaw, 160 Mass. 140, 35 N. E. 671; In re Potter's Will, 89 Vt. 361, 95 A. 646.

Bequest to a religious or charitable society, parish, or lodge, witnessed by a member. Warren v. Baxter, 48 Me. 193; Trust Co. v. Bixby, 247 Mass. 449, 142 N. E. 107; Haven v. Hilliard, 23 Pick. (Mass.) 10; Loring v. Park, 7 Gray (Mass.) 42; Re Will's Estate, 67 Minn. 335, 69 N. W. 1090; Quinn v. Shields, 62 Iowa, 129, 17 N. W. 440, 49 Am. Rep. 141.

Bequest to corporation witnessed by stockholder. Marston et al., Pet'rs, 79 Me. 25, 8 A. 87. In this case the corporation was one devoted largely to public purposes. In effect and meaning the court says that a witness is not necessarily incompetent by reason of being a stockholder in a corporation legatee.

Witness Held Beneficially Interested.

Will witnessed by wife of devisee. Clark et al., Appellants, 114 Me. 105, 95 A. 517, Ann. Gas. 1917A, 837; Sullivan Sullivan, 106 Mass. 474, 8 Am. Rep. 356.

Will witnessed by H. H. had a bequest in the will to take effect only if F. predeceased the testatrix. Castine Church, Appellant, 91 Me. 416, 40 A. 325.

Rules for Determining Whether Interest Beneficial.

Courts have undertaken to establish rules for determining whether an interest derived by a witness under a will is such a beneficial interest as to be disqualifying.

The Vermont court says in effect that to be disqualifying such interest must be "fixed, certain and vested pecuniary." Re Potter's Will, supra.

Our own court in the came connection uses the words "present, certain, legal, vested interest, and not uncertain or contingent." Warren v. Baxter, supra, and in another case "a direct and certain pecuniary interest." Marston et al., Pet'rs, supra.

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